UNION OF INDIA Vs. J AHMED

JUDGEMENT

(1.) Respondent J. Ahmed joined service in Assam State in 1945 and some time in 1959 came to be promoted to the Indian Administrative Service Cadre. In that very year he was posted as Deputy Commissioner and District Magistrate, Nowgong District. While he was holding the aforementioned post, some time in the beginning of June, 1960 there were large scale disturbances in Nowgong City and District area described in official parlance as 'language disturbances'. There was considerable damage to property. One Shri A. N. Kidwai, the then Additional Chief Secretary to the Government of Assam, undertook an inquiry into the causes of disturbances at Nowgong with a view to ascertaining the responsibility of District officials. After Shri Kidwai submitted his Report, the Government took the first step of suspending the respondent from service by an order dated 14th Sept., 1960. The Chief Secretary to the Government of Assam by his communication dated 13th Sept. 1960 conveyed to the respondent various charges framed against him and called upon him to submit his explanation. A statement of allegations was annexed to the communication. Respondent submitted his explanation and thereafter the Government appointed respondent No. 4, K. Balachandran as the Enquiry Officer. After the inquiry was concluded, the Enquiry Officer submitted his report. It may be noticed that respondent was born on 1st February 1907 and according to R. 16 of the All India Services (Death-cum Retirement Benefits) Rules, 1958 ('Retirement Rules' for short), then in force, the age of retirement being 55 years, the respondent would have retired from service on 1st February, 1962. First, the Governor of Assam by his order dated 31st Jan., 1962 purporting to exercise power under R. 16 (1) of the Retirement Rules, directed that the respondent then under suspension be retained in service for a period of three months beyond the date of his retirement which fell on 1st February 1962 or till the termination of departmental proceedings drawn up against him whichever is earlier. By subsequent orders dated 21st June, 1962, 1st Sep., 1962, 23rd Feb. 1963 and 28th August 1963 respondent was retained in service, till the inquiry pending against him concluded and final orders were passed in the proceedings. It may be mentioned that the order dated 28th August, 1963 was made by the Governor in exercise of the powers conferred by sub-rule (2) of R. 16 of the Retirement Rules. The Enquiry Officer submitted his report holding charges 1, 2, 3, 5 and 6 proved and in respect of charge No. 4 the finding recorded was that though the charge was proved, the Enquiry Officer took note of certain extenuating circumstances mentioned in the report. A memorandum dated 22nd Feb., 1963 was served by the Government of India on the respondent forwarding the report of the Enquiry Officer and the respondent was called upon to show cause why the provisional penalty determined by the Government of removal from service be not imposed upon him. Ultimately, by order dated 11th Oct., 1963 the President, after consultation with the Union Public Service Commission, imposed the penalty of removal from service on the respondent. A memorial submitted by the respondent to the President under R. 20 of the All India Services (Discipline and Appeal) Rules, 1955, ('Discipline and Appeal Rules' for short), against the imposition of the penalty was rejected.

(2.) The respondent filed a petition under Article 226 of the Constitution in the High Court of Assam and Nagaland. Two contentions were raised before the High Court:(1) Whether R. 16 (2) of the Retirement Rules is attracted so as to retain the respondent in service beyond the period of his normal retirement for the purpose of completing disciplinary proceedings against the respondent; and (2) if R. 16 (2) was not attracted, whether the retention of respondent beyond the normal period of his retirement was valid and if it was not valid, whether he could be removed from service after he had actually and effectively retired from service While examining these two contentions, the High Court was of the opinion that disciplinary proceedings can be held and punishment can be imposed for misconduct and the charges ex facie did not disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would not constitute misconduct. On the second point it was held that if the Enquiry was not for any misconduct, sub-rule (2) of R. 16 would not be attracted and the Government had no power to retain the respondent in service for the purpose of holding or completing disciplinary proceeding which can only be for misconduct, and as there was no inquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was not legal and valid, and, therefore, the respondent could not be removed from service from which he had retired. In accordance with these findings, the writ petition filed by the respondent was allowed declaring that the respondent was deemed to have retired from service from 1st February, 1962 and that the punitive or disciplinary action taken against him after that date is completely without jurisdiction and wholly unjustified, and the same was quashed.

(3.) The Union of India and the State of Assam have preferred this appeal by special leave.